In re Detention of Stout

• Decision Date: 04 January 2007
• Docket Number: No. 77369-6.,77369-6.
• Citation: 150 P.3d 86,159 Wn.2d 357
• Court: Washington Supreme Court
• Parties: In the Matter of the DETENTION of Roy Donald STOUT, Jr. State of Washington, Respondent, v. Roy Donald Stout, Jr., Petitioner.

150 P.3d 86

159 Wn.2d 357

In the Matter of the DETENTION of Roy Donald STOUT, Jr.

State of Washington, Respondent, v. Roy Donald Stout, Jr., Petitioner.

No. 77369-6.

Supreme Court of Washington, En Banc.

Argued June 8, 2006.

Decided January 4, 2007.

COPYRIGHT MATERIAL OMITTED

Elaine L. Winters, Washington Appellate Project, Seattle, WA, for Petitioner.

Malcolm Ross, Attorney General of Washington, Krista Kay Bush, McKay Chadwell PLLC, Seattle, WA, Jay Douglas Geck, Office of the Attorney General, Olympia, WA, for Respondent.

BRIDGE, J.

¶ 1 Following a bench trial, Roy Donald Stout, Jr. was committed as a sexually violent predator. He argues that the trial court's commitment decision should be reversed and that this court should remand for a new commitment trial because: (1) he should have been given the opportunity to relitigate the facts comprising the burglary conviction upon which his commitment was based; (2) his constitutional right to confront an adverse witness was violated when the State offered and the trial court admitted the deposition testimony of his burglary victim in lieu of live testimony; (3) he received ineffective assistance of counsel; and (4) the trial court did not reach a specific conclusion of law that Stout has serious difficulty controlling his behavior. We reject Stout's contentions and affirm the Court of Appeals.

I Facts and Procedural History

¶ 2 On July 6, 1997, Stout visited T.D., a casual acquaintance, at her home. As they sat in the living room and talked, Stout spoke sharply to T.D.'s children, directing them to leave the room. Stout placed his hand on T.D.'s breast, tried to move his hand up her thigh, and attempted to kiss her. He held her by placing his hand on her throat and pushing her back on the couch, leaving a bruise mark on her neck. T.D. struggled and told Stout, "No." Clerk's Papers (CP) at 345. She fled his advances and Stout left. On December 4, 1997, Stout pleaded guilty to burglary in the first degree in connection with the T.D. incident, and was sentenced to 75 months in prison. In his plea, Stout admitted that he "remained unlawfully in a building and assaulted a person herein." CP at 330; Report of Proceedings (RP) at 62-63.

¶ 3 While Stout was serving his sentence for the burglary, the State filed a petition alleging he was a sexually violent predator (SVP) and should therefore be involuntarily committed to the special commitment center pursuant to chapter 71.09 RCW. The State alleged that the burglary was sexually motivated, constituting a sexually violent offense as defined by statute. At trial the State offered Stout's guilty plea, in which he admitted to assaulting T.D. The State also offered T.D.'s testimony about the incident by way of two deposition transcripts, and a video recording of one of the depositions. A telephonic deposition was necessary because T.D. refused to return from her home in Michigan to Washington for the commitment trial.

¶ 4 The State also presented evidence of other charges and convictions against Stout for sexually motivated crimes. In 1982, Stout was charged with attempted rape in the second and third degree of K.W., a stranger to Stout. While a jury found him not guilty, injuries sustained by K.W. during the encounter suggested it was of a violent nature. In 1991, Stout entered into an Alford¹ plea for a third degree assault charge arising from his nonconsensual sex with a developmentally disabled woman, J.G. In 1992, a jury found Stout guilty of indecent liberties by forcible compulsion in connection with an incident involving K.O. In 1996, Stout was charged with telephone harassment after he called J.B., a stranger, and asked her to have sex with him for money. The charge was later dropped. The court also heard testimony from R.S., who had an encounter with Stout that was very similar to his encounter with K.O.² The trial court found that Stout has "a lengthy history of approaching total strangers or casual acquaintances for sex . . . [and] becoming violent when rebuffed." CP at 340.

¶ 5 In addition to Stout's criminal history, at trial the State also offered expert testimony from Dr. Richard Packard, who opined that Stout suffers from antisocial personality disorder and from the mental disorder "paraphilia not otherwise specified (NOS), non-consent." CP at 347. This means that Stout suffers from a mental disorder that "causes recurrent intense sexually arousing fantasies, urges and behaviors involving non-consenting adults . . . ." CP at 347. In making his evaluation, Dr. Packard reviewed Stout's criminal history, including his nonsexual criminal offenses, Department of Corrections records, previous evaluations, police reports, victim statements, presentence investigations, trial testimony transcripts, special offender center records, deposition transcripts, and interviews with and tests on Stout. Stout offered his own testimony contradicting the versions of events offered by the various women called to testify and also offered expert testimony from Dr. Betty Fletcher contradicting Dr. Packard's evaluation. The trial court found Stout far less credible than the victims and Dr. Packard more helpful than Dr. Fletcher.

¶ 6 In October 2003, the trial court determined that Stout is a sexually violent predator as defined in chapter 71.09 RCW and ordered him to be involuntarily committed. The court concluded the burglary for which Stout was incarcerated was a sexually violent offense. It also concluded that his 1992 conviction for indecent liberties by forcible compulsion was a sexually violent offense as defined by statute. It found that Stout suffers from a mental abnormality, paraphilia nonconsent, and antisocial personality disorder. The court also found that Stout's combination of paraphilia and antisocial personality disorder "causes him serious difficulty in controlling his behavior of engaging in sex with non-consenting others." CP at 332.

¶ 7 Stout appealed his commitment, arguing in part that the State did not prove he committed a burglary, he had ineffective counsel, and that the trial court failed to make a necessary conclusion of law. The Court of Appeals affirmed the trial court's decision, In re Detention of Stout, 128 Wash. App. 21, 114 P.3d 658 (2005), rejecting Stout's argument that the State was required to reprove the burglary at the commitment trial and also his claim that his counsel was ineffective. The Court of Appeals held that because Stout had pleaded guilty to the burglary charge, the State was required to prove only that the burglary was sexually motivated and that the superior court's findings in that regard were supported by sufficient evidence. Stout petitioned for review of the Court of Appeals decision as to the State's burden of proof, ineffective assistance of counsel, and the trial court's conclusions of law. He additionally claimed for the first time before this court a right to confrontation at a commitment hearing. This court granted review at 156 Wash.2d 1030, 133 P.3d 474 (2006).

II Analysis

¶ 8 In order to commit an individual as an SVP under chapter 71.09 RCW, the State must show beyond a reasonable doubt that the individual is a sexually violent predator. In re Pers. Restraint of Young, 122 Wash.2d 1, 13, 857 P.2d 989 (1993). An SVP is an individual who as been "convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility." RCW 71.09.020(16) (emphasis added). Burglary is a sexually violent offense if the State shows beyond a reasonable doubt that the crime was sexually motivated. RCW 71.09.020(15)(c).

A. Burglary Plea

¶ 9 Following the incident at T.D.'s home, Stout pleaded guilty to first degree burglary, admitting, "I remained unlawfully in a building and assaulted a person herein." CP at 330; RP at 62-63. Stout first argues that the State failed to prove the underlying conviction on which it predicated its SVP petition in Stout's case. He contends that his plea of guilty to the burglary is not conclusive proof he committed burglary. Pet. for Review at 7-8. Consequently, Stout argues that the Court of Appeals improperly applied collateral estoppel against him, impermissibly frustrating his efforts to disprove he committed burglary. Id. at 8.³ We disagree.

¶ 10 Stout principally relies upon Clark v. Baines, 150 Wash.2d 905, 84 P.3d 245 (2004), in which we held that "a defendant who pleads guilty pursuant to an Alford plea has not had a full and fair opportunity to litigate the issues in the criminal action." Id. at 917, 84 P.3d 245. The Clark court explained that while an Alford plea is an admission, for the purposes of a subsequent civil action an Alford plea may not be conclusive of guilt. Id. at 915, 84 P.3d 245 (citing Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 605-06, 375 P.2d 439, 25 Cal.Rptr. 559 (1962)). Hence, the plea could not be used as a basis for collateral estoppel in a subsequent civil action.⁴

¶ 11 Stout claims the Court of Appeals erred below when it "rejected Mr. Stout's argument [that] he was not collaterally estopped from re-litigating the facts of the burglary," Petition for Review at 8, because the decision created a conflict with Clark.⁵ But the Clark court did not answer the question of whether a traditional guilty plea also precludes use of the plea as a basis for collateral estoppel. The Clark court reasoned that the "determination of whether application of collateral estoppel will work an injustice . . . depends primarily on `"whether the parties to the earlier proceeding received a full and fair hearing on the issue in question."'" Clark, 150 Wash.2d at 913, 84 P.3d 245 (quoting Thompson v. Dep't of Licensing, 138 Wash.2d 783, 795-96, 982 P.2d 601 (1999) (quoting In re Marriage of Murphy, 90 Wash.App. 488, 498, 952 P.2d 624 (1998))). However, C...